My biological father died intestate and I am his acknowledged son?
Full Question:
My biological father died intestate and is survived by his wife and his daughter residing in Montgomery. My mother and father were in a relationship when they were in college. They went separate ways after ending their relationship. My mom never told him that I was his son nor did she ever ask him for any kind of support. When my mother died, I approached my dad and gave him my mother’s diary that revealed everything to him. He then acknowledged me as his own son through the prescribed court procedure. His family was not aware of these facts. Now that he has died, how will the property be divided?
12/06/2016 |
Category: Wills and Es... » Intestacy |
State: Alabama |
#27579
Answer:
“The intestate share of the surviving spouse is as follows:
(1) If there is no surviving issue or parent of the decedent, the entire intestate estate;
(2) If there is no surviving issue but the decedent is survived by a parent or parents, the first $ 100,000.00 in value, plus one-half of the balance of the intestate estate;
(3) If there are surviving issue all of whom are issue of the surviving spouse also, the first $ 50,000.00 in value, plus one-half of the balance of the intestate estate;
(4) If there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate estate;
(5) If the estate is located in two or more states, the share shall not exceed in the aggregate the allowable amounts under this chapter.”
When it comes to a child that was born out of wedlock, he can be a beneficiary in an intestate succession unless he is acknowledged by the deceased. The law that governs this aspect is laid down in Code of Ala. § 26-11-1 and Code of Ala. § 26-11-2.
Code of Ala. § 26-11-1 reads:
“The marriage of the mother and reputed father of a bastard child renders it legitimate if the child is recognized by the father as his child.”
Code of Ala. § 26-11-2 reads:
“(a) A father of a bastard child may seek to legitimate it and render it capable of inheriting his estate by filing a notice of declaration of legitimation in writing attested by two witnesses, setting forth the name of the child proposed to be legitimated, its sex, supposed age and the name of mother and that he thereby recognizes it as his child and capable of inheriting his estate, real and personal, as if born in wedlock. The declaration, being acknowledged by the maker before the judge of probate of the county of the father's residence or the child's residence or its execution proved by the attesting witnesses, shall be filed in the office of the judge of probate of the father's residence or the child's residence.
(b) Upon the filing of the declaration of legitimation, notice shall be given to the child's mother and to the child as provided by the Alabama Rules of Civil Procedure. Notice may be waived as provided by the Alabama Rules of Civil Procedure. The child's mother shall, within 30 days after receiving notice, file her objection or consent to the legitimation with the probate court. The probate court shall appoint a guardian ad litem to represent the child if the mother files a timely objection or if the court determines such appointment to be in the best interest of the child. Following receipt of the mother's response or upon expiration of the time for her response, the probate court shall conduct an informal hearing at which all interested parties may present evidence for determination of whether legitimation is in the best interest of the child. The court shall issue an order of legitimation or denial of declaration of legitimation.
(c) Upon legitimation of the child, a certified copy of the minutes of the court shall be sent by the judge of probate to the Bureau of Vital Statistics, State Board of Health and to the Registrar of Vital Statistics of the county where the petition was filed within 30 days after the minutes are recorded.”
From the above provisions, in the present case, it is evident that a child who is legally acknowledged by a deceased according to the procedure laid down in Code of Ala. § 26-11-1 and Code of Ala. § 26-11-2 shall be treated as a beneficiary in an intestate succession per Code of Ala. § 43-8-41.